Supreme Court and Military Recruiting

Although we're likely weeks away from learning who President Obama will nominate to replace retiring Supreme Court Justice, John Paul Stevens, one name seems to keep popping up that we're not exactly enthused about- Elena Kagan, the former Dean of Harvard Law, appears to be on many of the short lists to fill the soon-to-be-available seat, particularly since she last year interviewed for the slot now held by Sonia Sotomayor.

No one at OYE can claim to be an expert in law. Besides fighting speeding tickets at night court we have very little experience in our legal system. What troubles us is her position on ROTC from this letter she wrote in 2005:

I continued this exception in effect, for the same reasons, through the 2003 and 2004 fall recruiting seasons. In the meantime, a consortium of law schools and law school faculty members (FAIR) brought suit challenging the Defense Department’s policy on constitutional grounds. Harvard Law School is not a member of FAIR, but 54 faculty members, including me, filed an amicus brief in that suit articulating different, statutory grounds for overturning the Department’s policy. In November 2004, the Court of Appeals for the Third Circuit issued a decision in the FAIR case, holding that the Defense Department’s policy violates First Amendment freedoms. The Supreme Court granted review of this decision; the Third Circuit’s ruling is stayed pending the Supreme Court’s decision, which is expected later this year. (Much the same group of HLS faculty members, including me, will file an amicus brief tomorrow in the Supreme Court litigation. I also understand that the University expects to join an amicus brief filed by Yale and other universities.) Although the Supreme Court’s action meant that no injunction applied against the Department of Defense, I reinstated the application of our anti-discrimination policy to the military(after appropriate consultation with University officials) in the wake of the Third Circuit’s decision; as a result, the military did not receive OCS assistance during our spring 2005 recruiting season. My hope in taking this action was that the Department would choose not to enforce its interpretation of the Solomon Amendment while the Third Circuit opinion stood. Over the summer, however, the Department of Defense notified the University that it would withhold all possible funds if the Law School continued to bar the military from receiving OCS services. As a result, I have decided (again, after appropriate consultation) that we should lift our ban and except the military from our general non-discrimination policy. This will mean that the military will receive OCS assistance during the fall 2005 recruiting season.

I have said before how much I regret making this exception to our antidiscrimination policy. I believe the military’s discriminatory employment policy is deeply wrong – both unwise and unjust. And this wrong tears at the fabric of our own community by denying an opportunity to some of our students that other of our students have. The importance of the military to our society – and the great service that members of the military provide to all the rest of us – heightens, rather than excuses, this inequity. The Law School remains firmly committed to the principle of equal opportunity for all persons, without regard to sexual orientation. And I look forward to the time when all our students can pursue any career path they desire, including the path of devoting their professional lives to the defense of their country.

We share Ms. Kagan's sentiments on The Military discriminating against gays, yet we do not endorse the idea that a university should in turn discriminate against students that wish to pursue Military Service after college.

Our Country can do better. Hopefully President Obama will choose to pass on Ms. Kagan once more.